It’s anybody’s guess what a federal judge in Portland will do Friday when the city and state seek an emergency court order to stop President Trump’s deployment of troops to Portland — options include outright blocking the troops, allowing them to come with or without restrictions or simply waiting until they actually arrive.
Some legal experts say the Oregon attorneys may face an uphill battle if no troops are on the ground yet and if the government makes clear that they’ll serve in a limited role of protecting federal property and officers when they arrive.
“There is a substantial possibility that the judge would say, ‘You have interesting arguments and I see the merits in the arguments, but since the state and city won’t know what the federalized troops are doing until they arrive in Portland, the issue is not ripe for court intervention,’” said professor Tung Yin of Portland’s Lewis & Clark Law School.
Others believe that the presence of federalized Oregon National Guard troops makes no difference: All that matters is that state and city lawyers challenging the federal government can show that the deployment will “irreparably harm” Portland and that they are likely to eventually prevail in the case.
“There is no requirement that plaintiffs wait until the irreparable harm has happened,’ said Elizabeth Goitein, a senior director of the Liberty and National Security Program at the Brennan Center of Justice, a nonpartisan institute at New York University Law School. “As long as the President has authorized deployment and it’s in the process, the court can consider a temporary restraining order.”
U.S. District Judge Michael H. Simon could rule on whether to issue a temporary restraining order from the bench, later in the day, within 24 to 48 hours or whenever he is ready to after the 10 a.m. hearing.
The order is designed to be a pause in action for up to two weeks, to be followed by a more substantial hearing that could include witnesses and other evidence presented before the judge decides whether to grant a longer-lasting preliminary injunction that would extend the pause while the case heads to trial.
The crux of Friday’s debate will be whether Trump met the established criteria for taking federal control of 200 Oregon National Guard members.
Trump and Defense Secretary Pete Hegseth on Sunday morning informed the state that the federal government was ordering the Guard into federal service in Portland for 60 days.
The state joined with the city of Portland and filed a lawsuit challenging the deployment and then filed a motion for the temporary restraining order to block the troops’ arrival.
None have shown up yet at the U.S. Immigration and Customs Enforcement office in South Portland.
Trump has claimed in increasingly overheated language that the ICE building is under siege and promised in a White House press release Tuesday to “Crush Violent Radical Left Terrorism” in Portland.
A band of a few dozen protesters has held nightly demonstrations outside the building, yelling at federal officers, spray-painting derogatory messages on boarded-up windows, trying to block the driveway when federal vehicles leave or enter and sometimes getting into fights with officers who emerge with shields to clear the driveway and occasionally spray demonstrators with chemicals, fire pepper ball munitions or push or strike them.
The ICE building sits in a residential-business district and has long been a target of protesters who disagree with immigration policy. In June, demonstrators gathered by the hundreds after a “No Kings’ march earlier in the day. Several people used a stop sign then as a makeshift battering ram to shatter the building’s glass front door and Portland police declared a riot.
Since then, most of the demonstrations have been small, steady and loud but relatively uneventful. Federal officers and Portland police have made about 30 arrests each over the summer.
Trump cited Title 10, Section 12406 of federal code to call up the National Guard members. That law authorizes the president to federalize the National Guard only in cases of invasion, rebellion or when the president “is unable with the regular forces to execute the laws of the United States.”
It’s the third justification that likely will be central in this case, lawyers said.
Attached to Hegseth’s memo informing Gov. Tina Kotek of the federal deployment was the same June 7 memo the president signed and used to mobilize the National Guard in California.
The memo – titled “Department of Defense Security for the Protection of Department of Homeland Security Functions” – contends that “numerous incidents of violence and disorder” in response to immigration enforcement, along with “significant damage” to immigration facilities and “credible threats” constituted a “form of rebellion against the authority” of the U.S. government.
In California, government lawyers argued that protesters had interfered with the ability of federal employees to do their work, citing evidence that they threw objects at ICE vehicles, “pinned down” several Federal Protective Service officers by throwing “concrete chunks, bottles of liquid and other objects” and used “large rolling commercial dumpsters as a battering ram” to try to to breach the parking garage of a federal building.
At the ICE building in Portland, federal government lawyers are expected to highlight that protesters have blocked the driveway, used bolt cutters to dismantle an electric card reader at the gate, interfered with fiber-optic cables to block internet access in the office, struck an officer in the head with a rock, kicked and punched officers in the driveway, thrown knives and incendiary devices at officers and broke the front door.
But lawyers for the state and city have argued in court papers that local and state police have the protests under control and that the numbers of people demonstrating outside the ICE building have dwindled significantly in the last two months.
Since mid-July, the Portland Police Bureau’s Central Precinct command staff have monitored the nightly protests without regularly sending officers to intervene, but the bureau has access to a Rapid Response Team of officers to help if needed, as well as state police mobile field forces for backup, police said in court filings.
The state and city have argued in their lawsuit that the president’s actions represent a “direct assault” on the governor’s prerogative to use the military for domestic affairs and that troops on the city’s streets will inflame the atmosphere, provoke protesters and draw police resources away from standard emergencies.
The federal government won’t be able to support its actions, some lawyers say.
Among them is New York-based attorney Daniel C. Schwartz, who focuses on national security matters and is head of the legal advisory committee of National Security Leaders of America, a bipartisan volunteer group of former military and civilian leaders.
“The president must show in order to protect the ICE facility, the regular police forces of the state of Oregon and the city of Portland are insufficient. That has not happened,” Schwartz said. “In all likelihood, absent some major turmoil in Portland, it’s unlikely to happen. The president is not going to be able to show that the regular officers of Oregon cannot protect the building.”
Goitein, the director at NYU’s Brennan Center, agreed.
“There is even less of a factual basis for a deployment in Portland than in Los Angeles,” Goitein said. “It is not a sufficient basis to deploy the military because some individuals merited some misdemeanor arrests. It has to rise to a level where under the law the president cannot enforce immigration law without using the National Guard.”
That hasn’t occurred, she said.
Portland has made a strong case in its court filings, she said, that sending the military to the city will only make things worse and ratchet up tensions.
“Violence is not protected by the First Amendment, but protests do not lose their First Amendment protection because some individuals engage in criminal acts,” she said. “This is just not a situation where deployment of the military is justified.”
Most of the limited situations where presidents have sent troops to deal with civil unrest occurred when local and state police couldn’t handle mass rioting and the state asked for help, Goitein said.
Other times occurred when a state was complicit in actively obstructing civil rights law, she said. For example, in 1962, President John F. Kennedy activated the Mississippi National Guard to enforce integration of the University of Mississippi. Three years later, President Lyndon B. clashed with Gov. George Wallace and federalized Alabama’s National Guard troops to protect the lives of civil rights activists, including Martin Luther King Jr.
Goitein also noted that in contrast to Portland, the Guard deployment in California occurred as tumultuous protests continued for several days. Court records cited gatherings of thousands of protesters, paintballs fired at officers, an attack of a federal van and a federal building closed in response.
Nothing of that magnitude has occurred at Portland’s ICE facility in recent days, lawyers noted.
“Here’s a situation where local law enforcement does not in any way seem to be overwhelmed,” Goitein said.
Still, it’s possible that the Trump administration has learned from its experience in California and will make the case that far fewer troops have been called into federal service in Portland and that they will focus only on protection of federal property and federal officers, legal scholars said.
A federal judge in San Francisco issued a temporary restraining order in June to halt the Guard deployment in California after hundreds of the 4,000 members called up had already arrived and then in early September granted the longer injunction.
U.S. District Judge Charles R. Breyer found that the National Guard members in Los Angeles had violated the Posse Comitatus Act, which prohibits the use of the military for domestic purposes and bars military forces from direct “involvement in the execution of laws” or actions that “pervade the activities of civilian authorities.” He rejected the Trump administration’s argument that the president has “inherent constitutional authority” to protect federal property, federal personnel and federal functions.
He ruled that troops cannot engage in law enforcement activities including crowd, traffic or riot control.
But lawyers for the Trump administration successfully convinced a three-judge panel of the 9th U.S. Circuit Court of Appeals to put a hold on Breyer’s restraining order and injunction. The 9th Circuit has yet to rule on the merits of the case.
The federal government’s lawyers sought to stress the troops’ limited role. The military’s deputy chief of staff responsible for the unit overseeing the troops in Los Angeles told the court that the troops didn’t interact with any civilians.
The commanding general testified that the soldiers were instructed that they “weren’t allowed to do any law enforcement actions” and were there only to “protect federal property and only to protect federal personnel.”
Syracuse University law professor William Banks said the government attorneys could make that same argument in Portland “and commit to limiting what the soldiers do.” If so, that may make getting a restraining order “a tough sell,” he said.
In Los Angeles, as the court case has proceeded, the number of troops has fallen.
“That’s a good thing about the relative lack of speed within the federal court system. It’s kind of a diffuser,” Banks said. “Things tend to quiet down with the passage of time.’’
The same may be true in Portland.
Whichever way Simon rules, the losing side will likely ask the 9th Circuit to put a hold on his ruling while it considers a full appeal.
And Portland and Oregon will wait once again to see what the president will say and do.
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